# Petition for Writ of Certiorari — Fruhwirth v. Baltimore City Police Department

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2438%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1991
- **Citation:** 502 U.S. 907

## Text

‘ l FILED
= i. .
No. 066i aust |
In The

Supreme Court of the United States

-—
—

October Term, 1991
CHARLES FRUHWIRTH,
Petitioner,
ys

BALTIMORE CITY POLICE DEPARTMENT,
-and-
EDWARD V. WOODS, COMMISSIONER,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

MICHAEL MARSHALL*
HERBERT R. WEINER
SCHLACHMAN, BELSKY & WEINER, P.A.
Attorneys for Petitioner
207 East Redwood Street
9th Floor
Baltimore, Maryland 21202
(301) 685-2022

* Counsel of Record

673
tz * NJ (201) 257-6850¢(800) 3 APPEAL *NY (212) 840-4640¢MA (617) 542-1114
mie aime. OC (202) 783-7288*PA (215) 925-6500¢USA (800) 5 APPEAL

QUESTION PRESENTED

Should a federal district court refuse to apply the abstention
doctrine set forth in Younger v. Harris when a police officer lodges
a first amendment challenge to a departmental administrative
disciplinary hearing, in a situation in which the Department has
instituted preliminary formal proceedings, but the accused officer
has no knowledge of these proceedings until the time he seeks
relief in federal court?

ii

TABLE OF CONTENTS

Page
ne ss aap bakes wien cele hee Gee i
;; Rk REECE SERS ee ee Rov, SRP pe Pie Eh il
p20 rn een ae ene Le A iil
SS SD ov cw cvescvesusnecns steps 0d edv ema |
Ps bn 5.00 6 baths peewee eee bk oe eee 2
Constitutional and Statutory Provisions Involved ....... 2
eee Gr BO OAD ko oie 6 5:5 pss os ese peee nw ee raenes 3
mensons tor Civamtinn (00 WE... ic ci civeveveasacseesn 5

A FEDERAL DISTRICT COURT SHOULD
REFUSE TO APPLY THE ABSTENTION
DOCTRINE SET FORTH IN YOUNGER V.
HARRIS WHEN A POLICE OFFICER LODGES
A FIRST AMENDMENT CHALLENGE TO A
DEPARTMENTAL ADMINISTRATIVE
DISCIPLINARY HEARING, IN A SITUATION IN
WHICH THE DEPARTMENT HAS INSTITUTED
PRELIMINARY FORMAL PROCEEDINGS, BUT
THE ACCUSED OFFICER HAS NO
KNOWLEDGE OF THESE PROCEEDINGS
UNTIL THE TIME HE SEEKS RELIEF IN
Fees MUU co vv cceryecaskauleeeeee 5

Hl

Contents
Page

A. This Case Is Factually Distinct From Any Case
in Which a Federal Court Has Relied Upon the
Younger Abstention Doctrine to Abstain From
Hearing a Litigant’s Claim and Is Therefore a
Case of First Impression. ................. 5

B. The Decision Below, Holding That It Was
Appropriate for the District Court to Abstain
From Hearing Petitioner’s First Amendment
Challenge to the Department’s Administrative
Disciplinary Hearing, Threatens to Unduiy
Broaden the Abstention Doctrine Set Forth in
Younger v. Harris, and Threatens to Deny
Certain Individuals the Opportunity to Raise
First Amendment Challenges in Federal Court.

Ga he oe ee P 12
TABLE OF CITATIONS
Cases Cited:
Cameron v. Johnson, 390 U.S. 611 (1968) ............ 11, 12
Christ the King Regional High School v. Culvert, 815 F.2d
219 (2nd Cir.), cert. denied, 484 U.S. 830 (1987)

Dombrowksi v. Pfister, 380 U.S. 479 (1965)............ 12

Hawaii Housing Authority v. Midkiff, 467,.U.S. 229 (1984)

iv

Contents
Page
Hotel and Restaurant Emp., Etc. v. Danzinger, 536 F. Supp.
317 (1982), aff'd, 832 F.2d 263 (1987) ............. 11
Middlesex Ethics Committee v. Garden State Bar Ass’n, 457
U.S. Gap Cees sk OUP eT 6, 7,9
Ohio Civil Rights Commission v. Dayton Christian Schools,
477 U.S. 619 (1986) .......... E MARAE on sé vo 8
Telco Communications, Inc. v. Carbaugh, 885 F.2d 1225 (4th
Cir. 1989), cert. denied, 110 S.Ct. 1923 (1990)......
sis DAW Wh clea WEA Rk Sed ek old uke 6, 7, 8, 10, 11
Younger v. Harris, 401 U.S. 37 (1971) ............... passim
eeeaee ¥. Tee, Fe Wis ek GEST) ow vivveccccceons 12

Statutes Cited:

ee oe PO Pt ee ee TT ter 3
ee Eas OO cancer ee a uch 105k + ee aoe Cab eae s n> 2
a Ee ea a en at soa es eee 8 se aa kA AK 3
Be Ses Ae Es 6 co n:s da oo 40s 45 6 bed oe es 3
ee a cae oct eek lease cus cea earhaeers 3
pg OS ore |p PN er reer eri rrerey Ser Seer 3
I EE oo oo dade acacnda Cageaees ee racemase 3

oe ee | er rer ee ree Serres ere yee ee 3

Contents *
Page
United States Constitution Cited:
SS he cos. sai aches beehexentee passim
EE ea Re

APPENDIX

Appendix A — Unpublished Opinion of the United States
Court of Appeals for the Fourth Circuit Dated April 25,
PR or ea crack en nes ota da vend Cake Tear rons la

Appendix B — Memorandum Opinion and Order of the
United States District Court for the District of Maryland
ee sy ck naan on 0 dee eee ee ee 4a

> | -

ta > (SPU Gea el Seep pothieJ

z _ Of Sere ‘ena
ag! 7
7 : - = ve’) H
eo, cde ac} Fi hg masel®
‘
—" > ~
nm eS =

ERR ati) otk) Yh, ArreqjC} teats eens: :
en a -

ce ie = ae,

O

Sui 4

No.

=f In The

Supreme Court of the United States

October Term, 1991
CHARLES FRUHWIRTH,
Petitioner,
VS.
BALTIMORE CITY POLICE DEPARTMENT,
-and-

EDWARD V. WOODS, COMMISSIONER,

Respondenis.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

On May 25, 1990, the United States District Court for the
District of Maryland entered a memorandum opinion wherein the
court denied petitioner’s Motion for Injunctive Relief and

dismissed his complaint. The memorandum opinion and order
are reproduced at 4a.

On April 25, 1991, the United States Court of Appeals for
the Fourth Circuit issued an unpublished opinion and judgment
affirming the judgment of the United States District Court for
the District of Maryland. The opinion and judgment are
reproduced at la. =

JURISDICTION

The United States Court of Appeals for the Fourth Circuit
entered a judgment affirming the judgment of the United States
District Court for the District of Maryland on April 25, 1991.
This Court’s jurisdiction is invoked pursuant to 28 U.S.C.
§ 1254(1). .

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

U.S. CONST. amend. |

Congress shall make no law respecting an
establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people
peaceably to assemble, and to petition the
Government for a redress of grievances.

U.S. CONST. amend. XIV, § 1

All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are
cHizens of the United States and of the State
wherein they reside. No State shall make or enforce

any law which shali abridge the privileges or
immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny
tO any person within its jurisdiction the equal
protection of the laws.

STATEMENT OF THE CASE

Petitioner, Charles Fruhwirth, is a police officer employed
by the Baltimore City Police Department. On August 25, 1988,
the Internal Investigation Division (11D) of the Department issued
a report that sustained charges of misconduct against Fruhwirth.
The charges related to an off-duty comment Fruhwirth made to
his wife about the manner in which a Southwest District dispatcher
handled his inquiry regarding a polic> surveillance in the area
of the Fruhwirth home. The comment was inadvertently
transmitted to a departmental dispatcher over Fruhwirth’s speaker
phone, which Fruhwirth thought had been disconnected at the
conclusion of the telephone call. Fruhwirth was served with
departmental charges and notified that a disciplinary hearing would
be set for a later date. The disciplinary hearing was set for
September 12, 1989. At no time prior to August 25, 1988 did
Fruhwirth have any knowledge of the allegations against him,
nor did he know about the investigation conducted by IID. The
Department made no attempt to take a statement from Fruhwirth
at any time during the course of the investigation, or otherwise
notify Fruhwirth of the investigation or pending charges.

On August 17, 1989, Fruhwirth filed a Complaint with the
United States District Court for the District of Maryland seeking
declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201
and 2202, and 42 U.S.C. § 1983. Jurisdiction was conferred by
28 U.S.C. §§ 1331, 1343(a)(3) and (a)(4), and 18 U.S.C. § 401.
No proceedings or other administrative action had occurred in

the intervening year. In his complaint, Fruhwirth alleged, inter
alia, that his expression of disapproval with the manner in which
his emergency telephone call was handled by the Department is
speech constitutionally protected by the First and Fourteenth
Amendments to the United States Constitution. Fruhwirth further
alleged that should the Department be permitted to hold a
disciplinary hearing and discipline Fruhwirth for the lawful exercise
of his constitutionally protected rights, the very conducting of
such a hearing would violate Fruhwirth’s constitutional rights.

On September 14, 1989, the Department filed a motion to
dismiss On grounds unrelated to abstention. Subsequently, on
March 8, 1990, the Department filed a supplemental motion to
dismiss wherein the Department requested the district court to
abstain from hearing Fruhwirth’s claim and to dismiss the
complaint.

A motions hearing was held before the district court on March
16, 1990. On May 25, 1990 the district court dismissed the
complaint based on the abstention doctrine set forth in Younger
v. Harris, 401 U.S. 37 (1971), and its progeny. The district court
held that abstention was appropriate since: (1) there existed an
Ongoing state administrative proceeding, (2) the state proceeding
involved the control and discipline of police officers, an important
State interest; and (3) Fruhwirth could seek judicial review of the
decision rendered by the police administrative board in the state
circuit court, with subsequent appeals available to him within the
state court system.

Fruhwirth filed a timely appeal to the United States Court
of Appeals for the Fourth Circuit. Fruhwirth alleged that the
district court had improperly relied on the abstention doctrine
set forth in Younger, and asserted four arguments in support
thereof: (1) that the action threatened by the Department was
patently unconstitutional; (2) that there were no ongoing state

proceedings; (3) that the state proceedings were not judicial in
nature and would not provide an adequate opportunity for
Fruhwirth to raise constitutional challenges; and (4) that there
was no important state interest involved. The fourth circuit
affirmed the opinion of the district court and held that the lower
court’s determination that leaving the matter in state hands would
serve an important state interest was appropriate.

REASONS FOR GRANTING THE WRIT

A FEDERAL DISTRICT COURT SHOULD REFUSE TO
APPLY THE ABSTENTION DOCTRINE SET FORTH IN
YOUNGER V. HARRIS WHEN A POLICE OFFICER LODGES
A FIRST AMENDMENT CHALLENGE TO A
DEPARTMENTAL ADMINISTRATIVE DISCIPLINARY
HEARING, IN A SITUATION IN WHICH THE
DEPARTMENT HAS INSTITUTED PRELIMINARY
FORMAL PROCEEDINGS, BUT THE ACCUSED OFFICER
HAS NO KNOWLEDGE OF THESE PROCEEDINGS UNTIL
THE TIME HE SEEKS RELIEF IN FEDERAL COURT.

The instant case is factually distinct from any case in which
a federal court has relied upon the abstention doctrine set forth
in Younger v. Harris to abstain from hearing a litigant’s claim.
Further, the decision below, holding that it was appropriate for
the district court to abstain from hearing Fruhwirth’s first
amendment challenge to the departmental administrative
disciplinary hearing, threatens to unduly broaden the abstention
doctrine, and further threatens to deny certain individuals the
opportunity to raise first amendment challenges in federal court.

A. This Case Is Factually Distinct From Any Case in Which a
Federal Court Has Relied Upon the Younger Abstention Doctrine
to Abstain From Hearing a Litigant’s Claim and Is Therefore
a Case of First Impression.

In the decision below, the fourth circuit held that it was
appropriate for the district court to rely on the abstention doctrine
set forth in Younger v. Harris, 401 U.S. 37 (1971), and thereby
abstain from hearing petitioner Fruhwirth’s first amendment
challenge to a Baltimore City Police Department administrative
disciplinary hearing. This Court has previously set forth a three
part analysis to be undertaken in determining whether Younger
abstention is appropriate. First, the court must consider whether
there exists a state proceeding which constitutes an ongoing judicial
proceeding. Next, the court must decide whether the state
proceedings implicate important state interests. Finally, the court
must ascertain whether the state proceedings provide an adequate
opportunity to raise constitutional challenges. See Middlesex Ethics
Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).

It is the first of these three prongs which is of particular
relevance to the instant case. In the decision below, the fourth
circuit affirmed the district court’s determination that the formal
action taken by the Baltimore City Police Department in
conducting an investigation of the allegations asserted against
Officer Fruhwirth amounted to an ongoing state judicial
proceeding. However, the facts of this case are distinct from those
to which the Younger doctrine has been applied. <3

The Court in Younger held that absent extraordinary
circumstances, federal courts should not enjoin pending state
criminal prosecutions. That decision was based primarily on the
notion of ‘‘comity,’’ or the ‘‘proper respect for state functions.”’
Id. at 44. Since the decision in Younger, however, Younger
abstention has been applied to situations in which federal claims
‘*have or could be presented in ongoing state judicial proceedings
that concern important state interests.’’ Telco Communications,
Inc. v. Carbaugh, 885 F.2d 1225, 1228 (4th Cir. 1989), cert. denied,
110 S.Ct. 1923 (1990), citing Hawaii Housing Authority v. Midkiff,
467 U.S. 229, 237-38 (1984) and Middlesex County Ethics

Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432-437
(1982).

The issue in Telco Communications, Inc. v. Carbaugh was
whether the Younger doctrine should apply to a particular civil
administrative proceeding. The Virginia Office of Consumer
Affairs (OCA) had advised Telco that it was investigating the
plaintiff’s fundraising activities in Virginia pursuant to a complaint
it had received. /d. at 1227. Telco filed suit in the Eastern District
of Virginia seeking to enjoin the OCA from enforcing certain
provisions of the Virginia charitable solicitation laws. /d. The
defendant requested the district court to abstain from exercising
jurisdiction because of the ongoing state administrative proceedings
against Telco. The district court denied the defendant’s motion.
Id. The fourth circuit found that Telco’s action did not disrupt
any Ongoing state proceeding, and therefore the district court
properly exercised jurisdiction in hearing Telco’s constitutional
challenge. /d. at 1228-30.

At first glance, it is arguable that the Baltimore City Police
Department, by virtue of the formal investigation conducted by
11D, had initiated formal proceedings with regard to the complaint
filed against Officer Fruhwirth, and therefore, the decision in
Telco, holding that abstention was inappropriate where there was
no ongoing state proceeding, is inapplicable. However this case
is factually similar to 7e/co in that, even though the Department
had undertaken formal investigative proceedings, it had not yet
held the formal disciplinary hearing. The 7Je/co court held that
‘the period between the threat of enforcement and the onset of
formal enforcement proceedings may be an appropriate time for
a litigant to bring its First Amendment challenges in federal court.”’
Id. at 1229. What remains unclear, however, is exactly what
constitutes ‘‘formal enforcement proceedings.”’

The instant case may again be distinguished from Telco in
that Telco, once it learned that the OCA was investigating its

activities, requested a meeting with OCA, pursuant to which an
‘* ‘informal fact-finding conference’ ’’ was held. /d. at 1228. The
Telco court found abstention inappropriate because this conference
was not a ‘‘formal hearing in conformance with the
Commonwealth’s Administrative Process Act... ’’ /d. at 1228.

In light of the policy behind abstention generally, however,
the instant case actually may present a more compelling situation
for exercising jurisdiction than Te/co. Not only was Fruhwirth
excluded from the Department’s fact-finding process, but he was
also denied any knowledge of the allegations against him.
Fruhwirth was not aware of the allegations asserted against him,
or of the investigation conducted by IID, until the time he was
served with departmental charges. Prior to any further
administrative action, Fruhwirth sought injunctive relief in federal
court. There were no informal discussions, as in TJe/co, let alone
any formal proceedings.

This is not a situation where an accused simply finds himseif
disenchanted with ongoing state proceedings and seeks to have
the. federal courts intervene to rescue him. Rather, this is a situation
where a litigant seeks to challenge the very existence of the
administrative action on first amendment grounds, and seeks that
opportunity prior to the onset of that action. However, in those
cases in which federal courts have determined that, by virtue of
ongoing state proceedings, Younger abstention is appropriate, the
accused party sought relief in federal court only after becoming
aware of the initiation of state proceedings, if not participating
therein.

For example, in Ohio Civil Rights Commission v. Dayton
Christian Schools, 477 U.S. 619 (1986), the Supreme Court found
abstention proper where the accused brought suit in federal court
after the Ohio Civil Rights Commission had initiated formal
administrative proceedings. /d. at 2722-24. However, prior to the

)

initiation of these proceedings, the Commission had warned
Dayton that failure to accede to a proposed Conciliation
Agreement and Consent Order, or, in the alternative, to submit
an acceptable counteroffer, would result in the Commission’s
initiation of formal proceedings. Fruhwirth, on the other hand,
had absolutely no knowledge of the formal investigative
proceedings conducted by IID until the Department decided to
file charges against him.

The facts in Middlesex County Ethics Committee v. Garden
State Bar Ass’n, 457 U.S. 423 (1982), offer another example. In
Middlesex, the court abstained where it found that an attorney,
prior to the commencement of federal action, had been served
with a detailed formal statement of charges for which he was
required to file an answer within ten days. /d. at 2524. The accused
attorney, however, received a letter from the Ethics Committee
at the onset of the investigation, and therefore he was aware that
the Committee was investigating allegations against him. In the
instant case, the Department took no steps to advise Fruhwirth
that a complaint had been filed against him, or that an
investigation was underway. Likewise, in Christ the King Regional
High School v. Culvert, 815 F.2d 219 (2nd Cir.), cert. denied,
484 U.S. 830 (1987), the appellant, prior to seeking an !njunction
in federal court, was served with a complaint and filed an answer
in response. In the instant case, Fruhwirth took no steps to further
the state proceeding. Fruhwirth was in no way involved in the
departmental investigation, nor did he express his position to the
Department at any time. In fact, the Department did not even
take a statement from Fruhwirth.

The applicability of the abstention doctrine in the instant
case cannot be measured by Younger and its progeny. The
investigation conducted by IID arguably constitutes an ongoing
state proceeding. That notwithstanding, Officer Fruhwirth had
no knowledge of this proceeding. If a state agency is allowed to

10

keep silent as to its investigation and preparation of charges in
an effort to avoid federal court review, then the abstention doctrine
may take on a function not intended by the courts. The
applicability of the Younger doctrine to a situation where there
exists a unilateral state proceeding has not yet been adjudicated.
This is a case of first impression, the facts of which strongly urge
this Court to set forth a new analysis.

B. The Decision Below, Holding That It Was Appropriate for the
District Court to Abstain From Hearing Petitioner’s First
Amendment Challenge to the Department’s Administrative
Disciplinary Hearing, Threatens to Unduly Broaden the Abstentien
Doctrine Set Forth in Younger v. Harris, and Threatens to Deny
Certain Individuals the Opportunity to Raise First Amendment
Challenges in Federal Court.

In Jelco, the fourth circuit expressed concern as to the
continuing expansion of the Younger abstention doctrine:

The doctrine of Younger abstention has progressed
over the past two decades to protect state criminal
proceedings ... state civil cases ... and state
administrative process . . . from premature federal
interference. To follow the doctrine, however, as
one would a pied piper, is to forsake the Supreme
Court’s rulings on constitutional rights.

Telco, 885 F.2d at 1230. The Te/co court, while acknowledging
the importance of state interests, found that the strength of those
interests would be respected by any court assessing a plaintiff’s
constitutional claims. /d. at 1229. As a result, the 7e/co court
held that the period between the threat of enforcement and the
onset of formal enforcement proceedings may be an appropriate
time for a litigant to bring his first amendment challenges in federal
court. /d. The accuracy of this analysis has never been addressed
by the Supreme Court.

11

In the instant case, considering that the couris below have
deemed that the investigation conducted by IID amounts to an
ongoing state judicial proceeding, there existed no period between
the threat of enforcement and the onset of formal enforcement
proceedings, as in 7e/co. Fruhwirth received notice of the onset
of formal enforcement proceedings at the same time he received
notice of the threat of such proceedings. That is, it was not until
the time at which departmental charges were served upon
Fruhwirth that he had knowledge that the threat of enforcement
existed.

The fourth circuit has held that Fruhwirth has absolutely no
right to assert a first amendm_nt challenge in federal court. Te/co
suggests that, had Fruhwirth been advised that departmental
charges were pending, that is, that enforcement proceedings were
threatened, he could have filed a federal claim. However, the
decision below leaves Fruhwirth with no such opportunity.
Fruhwirth filed in federal court at the first opportunity available
to him. This opportunity did not arise, however, until after the
Department had initiated formal proceedings, and after the period
of threatened enforcement had expired. Because Telco is not a
decision of this Court, guidance and clarification by this Court
as to the appropriate standard in a case such as this is warranted.

Unless this Court sets forth a clearer standard, one that is
applicable to situations such as the instant case where there is
no period of threatened enforcement proceedings, federal courts
will be free to abstain in virtually any case as long as the state
has instituted some type of formal proceeding. If this is the case,
individuals such as Fruhwirth will be denied the opportunity to
assert first amendment challenges in federal court. This Court
has held that abstention is particularly inappropriate where the
plaintiff has alleged a violation of his first amendment freedoms.
Hotel and Restaurant Emp., Etc. v. Danzinger, 536 F. Supp. 317
(1982), aff'd, 832 F.2d 263 (1987), citing Cameron v. Johnson,

12

390 U.S. 611 (1968); Zwickler v. Koota, 389 U.S. 241 (1967);
Dombrowksi v. Pfister, 380 U.S. 479 (1965). Abstention in this
case completely denies Fruhwirth the opportunity to assert a first
amendment challenge in federal court.

CONCLUSION

For the foregoing reasons, the petitioner Charles Fruhwirth
respectfully requests that a writ of certiorari be issued to review
the opinion of the fourth circuit.

Respectfully submitted,

MICHAEL MARSHALL
HERBERT R. WEINER
SCHLACHMAN, BELSKY &
WEINER, P.A.

Attorneys for Petitioner

3

la

APPENDIX A — UNPUBLISHED OPINION OF THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH
CIRCUIT DATED APRIL 25, 1991

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 90-1495
CHARLES FRUHWIRTH,
Plaintiff-Appellant,
versus

BALTIMORE CITY POLICE DEPARTMENT; EDWARD V.
WOODS, Commissioner,

Defendants-Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, District Judge.
(CA-89-2359-MJG)

Argued: March 5, 1991 Decided: April 25, 1991
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and
BRITT, United States District Judge for the Eastern District of
North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Michael Lawrence Marshall, SCHLACHMAN,

BELSKY AND WEINER, P.A., Baltimore, Maryland, for
Appellant. William Rowe Phelan, Jr., Senior Solicitor,

2a

Appendix A

DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees.
ON BRIEF: Herbert R. Weiner, SCHLACHMAN, BELSKY
AND WEINER, P.A., Baltimore, Maryland, for Appellant. Neal
M. Janey, City Solicitor, DEPARTMENT OF LAW, Baltimore,
Maryland, for Appeliees.

Unpublished opinions are not binding precedent in this circuit.
See 1.0.P. 36.5 and 36.6.

PER CURIAM:

The plaintiff-appellant, Charles Fruhwirth, a Baltimore City
police officer, seeks to enjoin a hearing on disciplinary charges
lodged against him following a telephone conversation which he
had initiated. The call was to the dispatcher at the Southwest
District of the Baltimore City police department. Fruhwirth, feeling
the dispatcher was unhelpful, and also thinking that he had
terminated the call, had unburdened himself of remarks about
the dispatcher. Actually, the line remained open and Fruhwirth
was Overheard and recorded by the dispatcher. He used one
scatological term, and suggested, in crude, uncomplimentary terms,
that the dispatcher was of African origin.

District Judge Marvin J. Garbis, in a succinct yet
comprehensive opinion, and despite cries that First Amendment
Constitutional guarantees of the exercise of the rights of free speech
were being punished, has applied the doctrine of Younger v.
Harris, 401 U.S. 37 (1971), to abstain from granting the requested
injunctive relief. He felt it preferable to leave the matter to state
administrative and judicial proceedings.

We affirm the opinion of the district court, FruAwirth v.
Baltimore City Police Dep’t, No. 89-2359 (D. Md., May 25, 1990),

3a

Appendix A

wherein it is observed that leaving the matter in state hands would
serve ‘‘an important state interest.’’ That avoided, on behalf of
comity, the resolution of the tangled question of whether
Fruhwirth’s case presents one of those relatively rare occasions
when ‘‘free speech’’ may be foo free to merit constitutional
protection (e.g., the false cry of ‘‘Fire’’ in a crowded theatre).

The judgment is accordingly

AFFIRMED.

4a

APPENDIX B — MEMORANDUM OPINION AND ORDER
OF THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MARYLAND DATED MAY 25, 1990

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CIVIL NO. MJG-89-2359
CHARLES FRUHWIRTH
Plaintiff
VS.
BALTIMORE CITY POLICE DEPT., et al.
Defendants
MEMORANDUM OPINION

Plaintiff, Charles Fruhwirth, an officer of the Baltimore City
Police Department, seeks to enjoin the Department and its
Commissioner from conducting an administrative hearing
regarding disciplinary charges made against him, and he further
asks the Court to order the dismissal of those charges. Plaintiff
alleges that the Defendants are denying him his rights guaranteed
by the United States Constitution and by the Maryland ‘‘Law
Enforcement Officers’ Bill of Rights,’’ codified at Md. Ann. Code
art. 27, § 727 et seq. (1988). Plaintiff has moved for a Preliminary
Injunction and Temporary Restraining Order, and Defendants
have filed a Motion to Dismiss.

In his Complaint, Plaintiff alleges that the Department’s
charges relate to a telephone conversation which took place on

ia}

Sa

Appendix B

August 12, 1988.' Plaintiff, while at home and off duty, was
informed by his wife that police cars had been in the area of his
home shining spotlights into the house and backyard. Plaintiff
called the Southwestern District dispatcher to determine why this
was occurring and possibly to offer assistance. The dispatcher
on duty, apparently from the Complaint a black woman, did not
indicate that the conversation was being recorded by the
Department’s phone system, although it is customary for such
an indication to be made at the outset of a call. After the dispatcher
told Plaintiff that she could not help him, Plaintiff believed that
the conversation was complete and hung up his telephone receiver.
Unknown to the Plaintiff, his speaker phone was still on and the
dispatcher remained on the line. At least twenty seconds after
hanging up the receiver, Plaintiff expressed to his wife his outrage
at the manner in which his call had been handled by the dispatcher.
Among the words used was reference to a sexual act and a racial
epithet. Plaintiff was not aware that his statements were audible
to the dispatcher and were being recorded. The next day, the
dispatcher filed a complaint against Plaintiff with the Department’s
Internal Investigation Division (‘‘1ID’’) for the use of profanity
and racial slurs. On August 25, 1988 the IID issued a report which
sustained misconduct charges against Plaintiff. Absent relief from
the Gourt, a trial-type board hearing will be held, after which
Plaintiff may be subjected to disciplinary action by the Police
Commissioner.

Plaintiff contends that this Court should enjoin the Baltimore
City Police Department from conducting the trial board hearing
in this matter. Plaintiff claims that the administrative proceeding
involves an action under color of state law which would deprive

1. For purposes of this Motion all allegations in the Complaint are assumed
to be true.

6a

Appendix B

him of constitutionally protected rights, an action which would
entitle him to relief in this Court under 42 U.S.C. § 1983. In
essence, Plaintiff contends that there is a substantial likelihood
that the statements overheard by the dispatcher are subject to
constitutional protection and that he cannot legally be punished
for the exercise of his right to free speech.

Initially, this court must determine whether it can, and should,
exercise jurisdiction to hear the case. The principal issue is whether
this Court should abstain from exercising jurisdiction under the
doctrine originally announced by the Supreme Court in Younger
v. Harris, 401 U.S. 37 (1971). As noted in Telco Communications,
Inc. v. Carbaugh, 885 F.2d 1225 (4th Cir. 1989):

Under Younger v. Harris, 401 U.S. 37 (1971),
federal courts should abstain ‘‘whenever federal
claims have been or could be presented in ongoing
State judicial proceedings that concern important
State interests.”” Hawaii Housing Authority v.
Midkiff, 467 U.S. 229, 237-38 (1984); Middlesex
County Ethics Committee v. Garden State Bar
Ass’n, 457 U.S. 423, 432-37 (1982). Important to
Younger abstention is the existence of an ongoing
State proceeding. If such a proceeding exists,
‘*reinstituting the action in the federal courts’’ is
impermissible; indeed to do so would involve 2
loss of time and duplication of effort. Wulp v.
Corcoran, 454 F.2d 826, 831 (1st Cir. 1972).

Id. at 1228. Although the circumstances in Je/co did not warrant
abstention because there was no pending state proceeding, here
an Ongoing state administrative proceeding is being delayed by
this case.

7a

Appendix B

As stated recently by Judge Walter E. Black, Jr. of this Court
in Chesapeake B & M, Inc. v. Cassilly, 729 F. Supp. 1106 (D.
Md. 1990):

Younger and its progeny ‘‘espouse a strong policy
against federal-court interference with pending
state judicial proceedings absent extraordinary
circumstances.’’ Middlesex County Ethics Comm.,
457 U.S. at 431. This policy is based upon notions
of comity which include proper respect for state
functions and ‘‘the belief that the National
Government will fare best if the States and their
institutions are left free to perform their separate
functions in their separate ways.’’ /d. at 431.

Id. at 1108. Although Younger originally addressed abstention
from state criminal proceedings, Younger abstention has
subsequently been extended to state administrative and disciplinary
proceedings. See, e.g., Middlesex County Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423 (1982) (state bar disciplinary
proceedings); Ohio Civil Rights Commission v. Dayton Christian
Schools, 106 S. Ct. 2718 (1986) (sex discrimination proceeding
before the Ohio Civil Rights Commission).

Applying Ohio Civil Rights Commission v. Dayton Christian
Schools, the Second Circuit articulated three questions that must
be resolved to determine if abstention is proper: ‘‘(1) whether
there is an ongoing state proceeding; (2) whether an importont
state interest is involved; and (3) whether the federal plaintiff has
an adequate opportunity for judicial review of his constitutional
claims during or after the proceeding.’’ Christ the King Regional
High School v. Culvert, 815 F.2d 219, 224 (2d Cir. 1987). In this
case, a State administrative proceeding is ongoing, and it involves

8a

Appendix B

an important state interest, the control and discipline of police
officers. Finally, judicial review of a decision of a police
administrative panel is available in the Circuit Court, pursuant
to Md. Ann. Code art. 27 § 732 (1988), with subsequent appeals
available within the state court system. These courts are certainly
well able to hear and decide any constitutional claims that may
arise during the administrative proceeding.

The interference of the United States District Court with this
administrative process appears totally unjustified. While the matter
is certainly important to the Department and to Mr. Fruhwirth,
it does not raise issues which would justify this Court’s blocking
the established administrative procedure and subsequent review
by the Maryland state courts. This Court emphasizes that it is
making no comment whatsoever on the merits of Mr. Fruhwirth’s
First Amendment claim. In this Court’s view, that is a matter
which should first be considered by the administrative trial board
and, if appropriate, by the Maryland courts.

For the reasons stated above, the Plaintiff’s motions for
injunctive relief will be denied and the Complaint in this action
will be dismissed by separate Order.

s/ Marvin J. Garbis
__ Marvin J. Garbis
United States District Judge

Date: May 25, 1990

9a

Appendix B

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

CIVIL NO. MJG-89-2359
CHARLES FRUHWIRTH
Plainuff
VS.
BALTIMORE CITY POLICE DEPT., et al.
Defendants
ORDER

For the reasons set forth in the Memorandum Opinion filed
this date:

1. Plaintiff's Motion for Preliminary Injunction and
Temporary Restraining Order is hereby DENIED.

2. Defendants’ Motion to Dismiss is GRANTED.

3. Judgment is hereby entered for the Defendants and against
the Plaintiff, with costs.

4. The Clerk shall mail a copy of this Order and the
accompanying Memorandum Opinion forthwith to counsel of

record.

SO ORDERED this 25th day of May, 1990.

10a

Appendix B

s/ Marvin J. Garbis
Marvin J. Garbis
United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2438%3A1. Public record. Not legal advice.